Appellate Brief Writing M O O T C O U R T B O A R D

Transcription

1 Appellate Brief Writing M O O T C O U R T B O A R D

2 Research, then research again Research before outlining Research after outline Research = 40 % (30% Outlining, 30% writing) Importance of secondary resources to (1) gain a better understanding of the issue; (2) gather a list of essential primary sources Treatises Law Review articles

3 Outline Establish a theme (important in writing brief s roadmap paragraphs) Logical step-by-step arguments Include all components of CRAC Rules and their cites Case law used in analysis and their cites

4 Examples of Outlines Susskin failed to invoke his right to silence based on the ra9onale of Davis. RULES: When a suspect s waiver of his right to an a>orney is ambiguous or equivocal [when that waiver comes aber the suspect already ini9ally and explicitly waived his right to an a>orney], interroga9ng officers have no obliga9on to stop ques9oning. Davis v. United States, 512 U.S. 452, 462 (1994) (ques9oning may con9nue un9l the suspect makes an unambiguous request for an a>orney). ANALYSIS: Seven federal Circuit Courts extend Davis to the ini9al waiver stage. James v. Marshall, 322 F.3d 103, (1st Cir. 2003); United States v. Johnson, 400 F.3d 187, (4th Cir. 2005); United States v. Suarez, 263 F.3d 468, (6th Cir. 2001); United States v. Lee, 413 F.3d 622, (7th Cir. 2005); United States v. Syslo, 303 F.3d 860, (8th Cir. 2002); United States v. Brown, 287 F.3d 965, (10th Cir. 2002); United States v. Acosta, 363 F.3d 1141, (11th Cir. 2004).

5 The majority of federal Circuit Courts (seven) extend the Davis rule to a suspect s waiver of his right to silence. Two of the circuits (5 th and 11 th Cir.) apply Davis to waivers that follow the suspect s ini9al waiver. Barnes v. Johnson, 160 F.3d 218, 225 (5th Cir. 1998); Medina v. Singletary, 59 F.3d 1095, 1100 (11th Cir. 1995). Five other Circuits extend Davis even farther and allow interrogators to con9nue ques9oning aber a suspect s ini9al ambiguous waiver. James v. Marshall, 322 F.3d 103, 108 (1st Cir. 2003); United States v. Hurst, 228 F.3d 751, (6th Cir. 2000); United States v. Banks, 78 F.3d 1190, (7th Cir. 1996); Mills v. United States, 519 U.S. 900 (1996); United States v. Johnson, 56 F. 3d 947, 955 (8th Cir. 1995); United States v. Nelson, 450 F.3d 1201, 1212 (10th Cir. 2006). No federal appellate court explicitly refuses to extend Davis to the right to remain silent. Charles D. Weisselberg, Mourning Miranda, 96 CAL. L. REV. 1519, 1580 (2008). Only one federal Cicruit in U.S. v. Rodriguez (9th Cir.) holds that Davis applies only to post waiver situa9ons in which the suspect has already unequivocally waived his rights, but then makes an ambiguous request for a lawyer during ques9oning. United States v. Rodriguez, 518 F.3d 1072, (9th Cir. 2008).

6 Susskin impliedly waived his right to silence. RULES: A waiver need not be expressly given, but rather it may be implied. North Carolina v. Butler, 441 U.S. 369, 373 (1979). In some cases [i.e. implied waivers], waivers can be clearly inferred from the ac9ons and words of the person interrogated, thus permiang ques9oning without an express wri>en or oral waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979). A suspect s course of conduct might establish an implied waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979). Other implied waivers = a suspect who acknowledges his rights, does not invoke them, is not subject to coercion, and who answers ques9ons voluntarily has impliedly waived his rights. United States v. Velasquez, 626 F.2d 314, 320 (3rd Cir. 1980); United States v. Cardwell, 433 F.3d 378, (4th Cir. 2005); United States v. Nichols, 512 F.3d 789, 798 (6th Cir. 2008); United States v. Binion, 570 F.3d 1034, 1041 (8th Cir. 2009); United States v. Washington, 462 F.3d 1124, 1134 (9th Cir. 2006). A valid waiver could not be presumed from silence or from the fact that a confession was in fact eventually obtained. Miranda v. Arizona, 384 U.S. 436, 475(1966).

7 Once the prosecutor proves that the warnings were given in a language that the suspect understands, courts find waivers in almost every case. George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the Due Process NoMce Cases, 99 MICH. L. REV. 1081, 1082 (2001). ANALYSIS Every federal court of appeals has upheld the admission of statement based upon an implied waiver. See Bui v. DiPaolo, 170 F.3d 232, (1st Cir. 1999); United States v. Scarpa, 897 F.2d 63, (2d Cir. 1990); United States v. Velasquez, 626 F.3d 314, (3d Cir. 1980); United States v. Cardwell, 433 F.3d 378, (4th Cir. 2005); United States v. McKinney, 758 F.2d 1036, (5th Cir. 1985); United States v. Stark, 609 F.2d 271, 273 (6th Cir. 1979); United States v. Banks, 78 F.3d 1190, 1199 (7th Cir. 1996); Thai v. Mapes, 412 F.3d 970, (8th Cir. 2005); United States v. Washington, 462 F.3d 1124, (9th Cir. 2006); United States v. Gell Iren, 146 F.3d 827, 830 (10th Cir. 1998); United States v. Gonzalez, 833 F.2d 1464, 1466 (11th Cir. 1987); United States v. Manderson, 904 F.2d 78, 78 (D.C. Cir. 1990) (unpublished disposi9on).

8 The brief: roadmap paragraphs Framing AND introducing Framing: Establish the theme in the following paragraphs (ex. trends, stats, logic) Introducing: But also describe the specific content you will discuss Note: Write near the end of the writing process

9 Examples of the Roadmap paragraph Susskin ini9ally challenges the admissibility of his incrimina9ng statements he made to police during interroga9on, but the FiBh Amendment allows his confession to be used in court. The FiBh Amendment protects a criminal suspect from being a witness against himself. U.S. CONST. amend. V. To ensure this protec9on against self incrimina9on, this Court established Miranda rights, which (1) obligate police to inform the suspect of his right to counsel and his right to remain silent, and (2) require a suspect s waiver of his rights to be made voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384 U.S. 436, (1966). Furthermore, without a waiver, police could not begin ques9oning the suspect in custody. Edwards v. Arizona, 451 U.S. 477, 485 (1981). Thus, the Miranda Court placed a heavy burden on the government to show that it had not uncons9tu9onally obtained a suspect s self incrimina9ng confession. Miranda, 384 U.S. at 475. However, two lines of authority (1) Davis v. United States, 512 U.S. 452 (1994), and its progeny, as well as (2) North Carolina v. Butler, 441 U.S. 369 (1979) and the development of the implied waivers doctrine have abated the high standards set forth in Miranda, making it significantly easier for police to ques9on custodial suspects and obtain confessions without viola9ng the suspect s FiBh Amendment rights. See Charles D. Weisselberg, Mourning Miranda, 96 CAL. L. REV. 1519, (2008) ( The Miranda Court s high standards for waiver have largely been abrogated by Davis v. United States and lower court cases extending Davis, as well as by decisions finding implied waiver of rights if suspects simply answer ques9ons during interroga9on. ).

10 The Skeleton of the Brief Use Clear Section Headings These help to let your reader know what topic you re about to discuss Be sure to make your sections headings a complete sentence. NOT: IV. International Consensus BUT: IV. An International Consensus Exists Against Sentencing Juveniles to Life Without Parole.

11 Example of Sec9on Headings I. MR. SUSSKIN S STATEMENTS MADE AFTER AN HOUR LONG INTERROGATION SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE SINCE AGENT MCFADDEN FAILED TO OBTAIN MR. SUSSKIN S WAIVER OF HIS RIGHT TO REMAIN SILENT. A. Mr. Susskin Should Not Have Been Interrogated Since He Neither Expressly, nor Impliedly Waived his Right to Remain Silent. 1. Mr. Susskin did not engage in a course of conduct that indicates a valid waiver. 2. Mr. Susskin s statement to police at the end of an hourlong interroga9on does not cons9tute voluntary waiver

12 Example of Sec9on Headings I. A CUSTODIAL SUSPECT WHO ACKNOWLEDGES HIS MIRANDA RIGHTS, REFUSES TO SIGN AN ACKNOWLEDGMENT FORM, AND CONTINUES TO COMMUNICATE WITH POLICE BOTH FAILS TO INVOKE AND WAIVES HIS FIFTH AMENDMENT RIGHTS. A. A custodial suspect who refuses to sign a Miranda acknowledgment form but con9nues to respond to police ques9oning fails to unambiguously and unequivocally invoke his FiBh Amendment right to silence. B. A custodial suspect impliedly waives his right to silence knowingly and intelligently by acknowledging his Miranda rights, responding to police ques9oning, and expressing a willingness to speak with his interrogators.

13 The brief: The body CRAC Conclusion Always use transitions Should clearly state your stance Rules If multiple rules, logical flow May include policy Analysis Split into: (1) Examples, and (2) Application Examples = rules in different contexts Application = examples in the context of your case Acknowledge opposition (i.e. counter arguments)

14 Examples of the Conclusion sentence Throughout the course of the interroga9on, Mr. Susskin did not engage in a course of conduct that cons9tutes a valid waiver. Susskin s course of conduct demonstrated a knowing an intelligent implied waiver of his right to silence.

15 Examples of the Rules This Court has established that the ques9on of waiver must be determined on the par9cular facts and circumstances surrounding [the] case, including the background, experience and conduct of the accused. Butler, 441 U.S. at (quo9ng Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

16 Examples of Rules A suspect s waiver must be made knowingly and intelligently in for the waiver to be valid. Miranda, 384 U.S. at A knowing and intelligent waiver is one that is made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Colorado v. Spring, 479 U.S. 564, 573 (1987). In determining whether a knowing and intelligent abandonment of FiBh Amendment rights have occurred, courts must look to the totality of circumstances, par9cularly to the facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused. Edwards, 541 U.S. at (ci9ng Johnson v. Zerbst, 304 U.S. 458, 464 (1938)

17 Examples of the Analysis In Butler, this Court found a suspect had impliedly waived his right where he told police I will talk to you but I am not signing any form. 441 U.S. at 371. Shortly aber saying this, the suspect made incrimina9ng statements to the police. Mr. Suskin s conduct is easily dis9nguishable from the suspect s conduct in Butler. Mr. Susskin remained mostly silent aber he acknowledged he understood his Miranda rights. Over the course of an hour he repeatedly avoided eye contact, shrugged his shoulders once, laughed once, and declined an invita9on to go to the bathroom. Unlike the suspect in Butler, Mr Susskin did not make a statement immediately upon being informed of his rights, but spoke only aber being interrogated by Special Agent McFadden for an hour.

18 Examples of Analysis In Butler, aber the criminal suspect was Mirandized, he verbally acknowledged his rights and subsequently replied to the interrogators, I will talk to you but I am not signing any form. This Court held that the incrimina9ng statements the suspect then made in answering the interrogators ques9ons were admissible because he had impliedly waived his rights in choosing to speak. Although the suspect in Butler verbally waived his rights, this Court held that a suspect s general course of conduct could demonstrate an implied waiver. Applying Butler here establishes that Susskin impliedly waived his right to silence by acknowledging his rights, responding to Agent McFadden s ques9ons, and evincing a willingness to discuss the inves9ga9on. ABer verbally acknowledging his rights, Susskin responded to Agent McFadden s ques9ons by shrugging his shoulders, laughing out loud, and giving direct verbal answers without ever refusing to respond or be ques9oned.

19 Paragraph Formatting Multiple ways do divide One option: Paragraph 1: Conclusion, Rules Paragraph 2: Analysis (Examples 1) Paragraph 3: Analysis (Examples 2) Paragraph 4: Analysis (Application 1) Paragraph 5: Analysis (Application 2) Another option: Paragraph 1: Conclusion Paragraph 2: Rule 1 and Analysis (examples 1) Paragraph 3: Analysis (Application 1) Paragraph 3: Rule 2 and Analysis (examples 2) Paragraph 4: Analysis (Application 2) Yet another option: Paragraph 1: Conclusion, Rules Paragraph 2: Analysis (examples 1 and applications 1) Later paragraphs: Analysis (examples 2 and applications 2)

20 Examples of paragraph formaang Paragraph 1: Mr. Susskin did not engage in a course of conduct that indicated a valid waiver. This Court eastablished that the ques9on of waiver must be determined on the par9cular facts and circumstances surrounding [the[ case, including the background, experience and conduct of the accused. Butler, 441 U.S. at In Butler, this Court found a suspect had impliedly waived his right where he told police I will talk to you but I am not signing any form. 441 U.S. at 371. Shortly aber saying this, the suspect made incrimina9ng statements to the police. Id. This Court found that since the suspect chose to speak with officers immediately aber acknowledging his Miranda rights, he had clearly engaged in a course of conduct that indicated a voluntary waiver of his rights. Id. at

21 Paragraph 2: Mr. Susskin s conduct is easily dis9nguishable from the suspect s conduct in Butler. Mr. Susskin remained mostly silent aber he acknowledged he understood his Miranda rights. Over the course of a hour, he repeatedly avoided eye contact, shrugged his shoulders once, laughed once, and declined an invita9on to go to the bathroom. Unlike the suspect in Butler, Mr. Susskin did not make a statement immediately upon being informed of his rights, but spoke only aber being interrogated by Agent McFadden for an hour.

22 Writing Points Active sentences NOT: Eric was shot by Alex BUT: Alex shot Eric Counter-arguments Explicit: Respondent argues that Alex did not commit a murder because he shot Eric without malice aforethought, but those claims are meritless. Subtle: Alex shot Eric with malice aforethought. Transitions Ex. Not only did Alex shoot Eric with malice aforethought, but he did so without justification, excuse, or mitigating circumstances. Order of arguments

23 Substantive Points Weight of case law Standard of Review Policy usually important in controversial and appellate cases